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Helping You Navigate Workplace Issues in California

Who Is Responsible for Racial Discrimination in the Workplace? California Court Addresses Liability of Staffing Agencies


Sexual harassment and racial discrimination are both prohibited under California law. An employee who is the victim of either may sue their employer (or former employer) for damages. But what about other parties? For example, could a victim of employment discrimination sue a staffing agency?

A recently published decision from the California Second District Court of Appeal in Los Angeles, Ducksworth v. Tri-Modal Distribution Services, addressed this subject. This case involved two women, Bonnie Ducksworth and Pamela Pollock, who worked as customer service representatives for Tri-Modal Distribution Services. Both women alleged that Tri-Modal failed to promote them because they are African-American.

Pollock further alleged a Tri-Modal executive sexually harassed her. More precisely, Pollock said she briefly dated the executive, but broke things off when he wanted to “make the relationship more sexual.” Pollock said the executive then blocked her promotion with Tri-Modal in retaliation.

Ducksworth and Pollock’s lawsuit named a number of defendants, including Tri-Modal, the executive who allegedly harassed Pollock, and two staffing agencies. The agencies “supplied” Ducksworth and Pollock to Tri-Modal in the first place. In court, the staffing agencies argued they were never parties to any of the alleged illegal activities, so they could not be held liable.

Both the trial court and the Second District agreed. The appeals court explained that under California law, a staffing agency is “not liable for harassment with which it was entirely uninvolved.” Here, the undisputed facts showed that the staffing agencies had no role in Tri-Modal’s decision to promote (or not promote) any particular employee. Such decisions were “solely” at Tri-Modal’s discretion. The Second District therefore affirmed the trial judge’s decision to award summary judgment to the staffing agencies.

Separately, the Second District also upheld the trial judge’s decision to dismiss the sexual harassment complaint against the Tri-Modal executive. The issue here was whether or not Pollock brought her claim within the statute of limitations. As noted above, Pollock alleged the executive failed to promote her because she broke off their personal relationship. By law, Pollock had one year from the date of the failure to promote–i.e., “when the employer tells employees they have been given (or denied) a promotion”– to take formal legal action.

Here, the evidence showed that Tri-Modal promoted someone other than Pollock in March 2017. Pollock did not actually bring her complaint until April 2018, about a month after the statute of limitations expired. Pollock insisted the one-year clock did not start to run until May 2017–when the other employee actually started the new job–but the Second District said the critical date was when the decision to promote was actually made.

Have Questions About Your Rights in the Workplace?

Sexual harassment and employment discrimination cases often involve complex factual and legal issues. Many California workers do not fully understand their rights and obligations under the law. If you have questions about the steps you need to take to address harassment or discrimination in your own workplace, contact an experienced California employment law attorney right away.


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* Cathleen Scott is licensed to practice in Florida only.

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